Petitioner Rolando P. Dela Torre via the instant petition for certiorari
seeks the nullification of two resolutions issued by the Commission on
Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack
of jurisdiction in SPA No. 95-047, a case for disqualification filed against
petitioner before the COMELEC.[1]

The first assailed resolution dated May 6,1995 declared the
petitioner disqualified from running for the position of Mayor of Cavinti,
Laguna in the last May 8,1995 elections, citing as the ground therefor, Section
40(a) of Republic Act No. 7160 (the Local Government Code of 1991)[2]
which provides as follows:

Sec. 40.Disqualifications.The following persons are disqualified from
running for any elective local position:

(a)Those sentenced by
final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment within two (2) years after
serving sentence;

(b)x x xx x xx x x.

In disqualifying the
petitioner, the COMELEC held that:

Documentary evidence x x x established that herein respondent
(petitioner in this case) was found guilty by the Municipal Trial Court, x x x
in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the
Anti-fencing Law) in a Decision dated June 1,1990.Respondent appealed the said conviction with the Regional Trial
Court x x x, which however, affirmed respondents conviction in a Decision
dated November 14,1990.Respondents
conviction became final on January 18,1991.

x x xx
x xx x x

x x x, there exists legal grounds to disqualify respondent as
candidate for Mayor of Cavinti, Laguna this coming elections.Although there is dearth of jurisprudence
involving violation of the Anti-Fencing Law of 1979 or P.D.1612 x x x, the
nature of the offense under P.D. 1612 with which respondent was convicted
certainly involves moral turpitude x x x.[3]

The second assailed resolution, dated August 28, 1995, denied
petitioners motion for reconsideration.In said motion, petitioner claimed that Section 40 (a) of the Local
Government Code does not apply to his case inasmuch as the probation granted
him by the MTC on December 21, 1994 which suspended the execution of the
judgment of conviction and all other legal consequences flowing therefrom,
rendered inapplicable Section 40 (a) as well.[4]

The two (2) issues to be resolved are:

1.Whether or not the
crime of fencing involves moral turpitude.

2.Whether or not a grant
of probation affects Section 40 (a)s applicability.

Particularly involved in the first issue is the first of two
instances contemplated in Section 40 (a) when prior conviction of a crime
becomes a ground for disqualification - i, e., when the conviction by final
judgment is for an offense involving moral turpitude. And in this
connection, the Court has consistently adopted the definition in Blacks Law
Dictionary of moral turpitude as:

x x x an act of baseness, vileness, or depravity in the private
duties which a man owes his fellowmen, or to society in general, contrary to
the accepted and customary rule of right and duty between man and woman or
conduct contrary to justice, honesty, modesty, or good morals.[5]

Not every criminal act, however, involves moral turpitude.It is for this reason that as to what crime
involves moral turpitude, is for the Supreme Court to determine.[6]
In resolving the foregoing question, the Court is guided by one of the general
rules that crimes mala in se involve moral turpitude, while crimes mala
prohibita do not[7], the
rationale of which was set forth in Zari v. Flores,[8]
to wit:

It (moral turpitude) implies something immoral in itself,
regardless of the fact that it is punishable by law or not.It must not be merely mala prohibita,
but the act itself must be inherently immoral.The doing of the act itself, and not its prohibition by statute fixes
the moral turpitude.Moral turpitude
does not, however, include such acts as are not of themselves immoral but whose
illegality lies in their being positively prohibited.[9]

This guideline nonetheless proved short of providing a clear-cut
solution, for in International Rice Research Institute v. NLRC,[10]
the Court admitted that it cannot always be ascertained whether moral turpitude
does or does not exist by merely classifying a crime as malum in se or
as malum prohibitum.There are
crimes which are mala in se and yet but rarely involve moral turpitude
and there are crimes which involve moral turpitude and are mala prohibita
only.In the final analysis, whether or
not a crime involves moral turpitude is ultimately a question of fact and
frequently depends on all the circumstances surrounding the violation of the
statute.[11]

The Court in this case shall nonetheless dispense with a review
of the facts and circumstances surrounding the commission of the crime,
inasmuch as petitioner after all does not assail his conviction.Petitioner has in effect admitted all the
elements of the crime of fencing.At
any rate, the determination of whether or not fencing involves moral turpitude
can likewise be achieved by analyzing the elements alone.

Fencing is defined in Section 2 of P.D.1612 (Anti-Fencing Law)
as:

a.x x x the act of any
person who, with intent to gain for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or
in any manner deal in any article, item, object or anything of value which he
knows, or should be known to him, to have been derived from the proceeds of the
crime of robbery or theft.[12]

From the foregoing definition may be gleaned the elements of the
crime of fencing which are:

"1.A crime of robbery
or theft has been committed;

2.The accused who is not
a principal or accomplice in the crime of robbery or theft, buys, receives,
possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or
in any manner deals in any article, item, object or anything of value, which
have been derived from the proceeds of the said crime;

3.The accused
knows or should have known that the said article, item, object or anything of
value has been derived from the proceeds of the crime of robbery or theft;
and [Underscoring supplied.]

4.There is, on the part
of the accused, intent to gain for himself or for another.[13]

Moral turpitude is deducible from the third element.Actual knowledge by the fence of the fact
that property received is stolen displays the same degree of malicious
deprivation of ones rightful property as that which animated the robbery or
theft which, by their very nature, are crimes of moral turpitude.And although the participation of each felon
in the unlawful taking differs in point in time and in degree, both the fence
and the actual perpetrator/s of the robbery or theft invaded ones peaceful
dominion for gain - thus deliberately reneging in the process private
duties they owe their fellowmen or society in a manner contrary
to x x x accepted and customary rule of right and duty x x x, justice, honesty
x x x or good morals. The duty not to appropriate, or to return, anything
acquired either by mistake or with malice is so basic it finds expression in
some key provisions of the Civil Code on Human Relations and Solutio
Indebiti, to wit:

Article 19.Every person
must, in the exercise of his rights and in the performance of his duties, act
with justice, give everyone his due, and observe honesty and good faith.

Article 21.Any person who
wilfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the
damage.

Article 22.Every person
who through an act of performance by another, or any other means, acquires or
comes into possession of something at the expense of the latter without just or
legal ground, shall return the same to him.

Article 2154.If something
is received when there is no right to demand it, and it was unduly delivered
through mistake, the obligation to return it arises.

The same underlying reason holds even if the fence did not have
actual knowledge, but merely should have known the origin of the
property received.In this regard, the
Court held:

When knowledge of the existence of a particular fact is an element
of the offense, such knowledge is established if a person is aware of the high
probability of its existence unless he actually believes that it does not
exist.On the other hand, the words
should know denote the fact that a person of reasonable prudence and
intelligence would ascertain the fact in the performance of his duty to another
or would govern his conduct upon assumption that such fact exists.[14][Italics
supplied.]

Verily, circumstances normally exist to
forewarn, for instance, a reasonably vigilant buyer that the object of the sale
may have been derived from the proceeds of robbery or theft.Such circumstances include the time and
place of the sale, both of which may not be in accord with the usual practices
of commerce.The nature and condition
of the goods sold, and the fact that the seller is not regularly engaged in the
business of selling goods may likewise suggest the illegality of their source,
and therefore should caution the buyer.This justifies the presumption found in Section 5 of P.D. No. 1612 that
mere possession of any goods, x x x, object or anything of value which has
been the subject of robbery or thievery shall be prima facie evidence of
fencing- a presumption that is, according to the Court, reasonable for
no other natural or logical inference can arise from the established fact of x
x x possession of the proceeds of the crime of robbery or theft.[15]
All told, the COMELEC did not err in disqualifying the petitioner on the ground
that the offense of fencing of which he had been previously convicted by final
judgment was one involving moral turpitude.

Anent the second issue where petitioner contends that his
probation had the effect of suspending the applicability of Section 40 (a) of
the Local Government Code, suffice it to say that the legal effect of probation
is only to suspend the execution of the sentence.[16]
Petitioners conviction of fencing which we have heretofore declared as a crime
of moral turpitude and thus falling squarely under the disqualification found
in Section 40 (a), subsists and remains totally unaffected notwithstanding the
grant of probation.In fact, a judgment
of conviction in a criminal case ipso facto attains finality when the
accused applies for probation, although it is not executory pending resolution
of the application for probation.[17]
Clearly then, petitioners theory has no merit.

ACCORDINGLY, the instant petition for certiorari is
hereby DISMISSED and the assailed resolutions of the COMELEC dated May 6,1995
and August 28,1995 are AFFIRMED in toto.

SEC. 4. Grant of Probation.- Subject to the
provisions of this Decree, the court may, after it shall have convicted and
sentenced the defendant but before he begins to serve his sentence and upon his
application, suspend the execution of said sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem
best.